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High Court Of Delhi
MUMTAZ JEHAN - Appellant
Versus
INSHA ALLAH ALIAS NOOR JEHAN - Respondent
Civil 1052 of 1981
Decided On : 07/21/1982
PARTITION - ACTUAL POSSESSION - DELIVERY OF POSSESSION - SYMB0LICAL POSSESSION - RES JUDICATA - WHETHER DECREE-HOLDER ENTITLED TO ACTUAL POSSESSION OF IMMOVABLE PROPERTY ALLOTTED TO HER IN PARTITION DECREE - WHETHER PREVIOUS EXECUTION APPLICATION FOR SYMB0LICAL POSSESSION BARS SUBSEQUENT APPLICATION FOR ACTUAL POSSESSION - INTERPRETATION OF ORDER 21 RULES 35 AND 36 OF THE CODE OF CIVIL PROCEDURE.
Fact of the Case:
Plaintiff filed a suit for partition and mesne profits with respect to properties detailed in Annexure A to the plaint against her step mother, two step sisters and uncle. A preliminary decree for partition and rendition of accounts was passed. The plaintiff's share was held to be 16172. The local commissioner suggested vertical partition of the immovable property bearing Municipal No. 2086 Ward No. XI Gali Nahar Khan, Kucha Chelan, Daryaganj, Delhi by a line shown as P to P-1 in the plan Ex. C. W. I 14. The portions marked d on ground floor, b and p on first floor and a on second floor of the said property i. e. the eastern portion of the said line, was allotted to the plaintiff. A final decree for partition in terms of the report of the Local Commissioner dated 2nd August, 1967 was passed. The plaintiff-decree-holder filed an execution application for possession of the property allocated to her share by beat of drums. The executing court issued warrant for delivery of symbolical possession. The decree-holder at the time of execution of the said warrant stated before the bailiff that the ground floor was in possession of Mohd. Yunus while first floor was in the occupation of Mst. Munawar Jehan and Akhtar Ali and that the second floor portion was in her possession. On 29th May, 1979 the decree-holder filed another execution application seeking delivery of actual possession of the portion on the first floor which was in occupation of Mst. Munawar Jehan (defendant No. I ) who had died on 13th May, 1971.
Finding of the Court:
The decree-holder is entitled to take actual physical possession of the property in occupation of Munawar Jehan, judgment debtor No. 1 i. e. portion b on first floor shown in plan Ex. C. W. 1/4. The decree-holder is not debarred from obtaining such possession. The question of res judicata does not arise at all as there has never been any prayer for actual possession at any time before.
Issues: Whether the decree-holder is entitled to actual possession of the immovable property allotted to her in the partition decree?
Ratio Decidendi: Order 21 rules 35 and 36 of the Code of Civil Procedure provide for delivery of possession by removing any person bound by the decree and symbolical possession if the property is in occupation of tenants entitled to occupy and not bound by the decree to deliver possession. In the previous execution case the decree-holder never made any prayer for delivery of actual possession. On the contrary there was specific prayer for delivery of possession by beat of drum. In other words, the decree-holder prayed for obtaining symbolical possession. Symbolical possession, as already stated, was to be obtained only from the tenants occupying the property entitled to occupy and not bound by the decree. Such persons in the instant case were only two in occupation of the portion d on ground floor and portion f on first floor. As there was never any prayer for actual possession it cannot be said that the decree-holder has no right to obtain actual possession now.
Final Decision: The revision is dismissed with costs.
( 1 ) WHETHER Mst. Insha Allah alias Noor Jehan plaintiff /decree-holder/respondent No. 1 is entitled to actual possession of the immovable property allotted to her in the partition decree ? is the question for decision in this revision petition.
( 2 ) BRIEFLY the relevant facts are that the plaintiff filed a suit for partition and mesne profits with respect to properties detailed in Annexure a to the plaint against her step mother (Mst. Munawar Jehan defendant No. 1), two step sisters (Mst. Mumtaz Jehan and Mst. Altaf Jehan, defendants No. 2 and 3) and uncle (Abdul Hamid-defendant No. 4 ). She claimed 16172 share of the entire property. A preliminary decree for partition and rendition of accounts was passed. The plaintiff s share was held to be 16172. The local commissioner suggested vertical partition of the immovable property bearing Municipal No. 2086 Ward No. XI Gali Nahar Khan, Kucha Chelan, Daryaganj, Delhi by a line shown as P to P-1 in the plan Ex. C. W. I 14. The portions marked d on ground floor, b and p on first floor and a on second floor of the said property i. e. the eastern portion of the said line, was allotted to the plaintiff. The Commissioner also reported that portion marked a on second floor was in occupation of the plaintiff, that portion marked b on first floor was in occupation of Mst. Munawar Jehan, defendant No. 1 that portion f on first floor was in occupaion of Akhtar Ali, a tenant at Rs. 18. 00 per month and another portion d on ground floor was. in occupation of Mohd. Ahmed, a tenant at Rs. 50. 00 per month. The portion marked b on first floor is in dispute in this revision.
( 3 ) ON 5th August, 1967 a final decree for partition in terms of the report of the Local Commissioner dated 2nd August, 1967 was passed. In other words, the ground floor portion marked d and the first floor portion marked f in occupation of the two tenants Mohd. Ahmed and Akhtar Ali and portion marked b on the first floor in occupation of defendant No. 1, Mst. Munawar Jehan and portion a on second floor in occupation of the plaintiff were allotted to the plaintiff in the final decree for partition. An appeal was filed by the defendants (R. F. A. No. 94 of 1968) but it was dismissed on 7th May, 1973.
( 4 ) ON 29th September, 1967 the plaintiff-decree-holder filed an execution application for, possession of the property allocated to her share by beat of drums. The executing court issued warrant for delivery of symbolical possession. The decree-holder at the time of execution of the said warrant stated before the bailiff on 1st December, 1967 that the ground floor was in possession of Mohd. Yunus while first floor was in the occupation of Mst. Munawar Jehan and Akhtar Ali and that the second floor portion was in her possession. Mohd. Yunus son of Mohd. Ahmed stated before the bailiff that he was a tenant in the eastern portion on the ground floor under Munawar Jehan. Ahmed Syed, another occupant stated that he was tenant under Mst. Munawar Jehan in a portion on the first floor. Proclamation of symbolical possession was made by beat of drum. The decree-holder made a statement that she had received from the bailiff symbolical possession of the eastern portion of the said house, that no further possession remains to be taken according to the plan attached to the warrant of possession. The bailiff submitted his report and the court in its order dated 16th December, 1967 observed that symbolical possession had been delivered and the execution application was consigned.
( 5 ) ON 29th May, 1979 the decree-holder filed another execution application seeking delivery of actual possession of the portion on the first floor which was inoccupation of Mst. Munawar Jehan (defendant No. I ) who had died on 13th May, 1971. The portion in her possession was occupied by Ahmed Syed her grandson. Notice of the execution application was issued. Mst. Mumtaz Jehan and Mst. Altaf Jehan defendants-judgment deb
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